Articles Posted in Arbitration & Mediation

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Reading, a Pennsylvania not-for-profit health system, issued auction rate securities (ARSs) to finance capital projects. J.P. Morgan was the underwriter and broker-dealer. Reading claims that J.P. Morgan and others artificially propped up the ARS market through undisclosed support bidding; when they stopped in 2008, the market collapsed. Reading filed state law claims and demanded arbitration with the Financial Industry Regulatory Authority (FINRA). The 2005 and 2007 broker-dealer agreements state “all actions and proceedings arising out of” the agreements or ARS transactions must be filed in the Southern District of New York. Reading filed a claim under FINRA Rule 12200, which requires a FINRA member (J.P. Morgan) to arbitrate any dispute at the customer’s request. J.P. Morgan refused, arguing that the forum-selection clauses in the 2005 and 2007 broker-dealer agreements constituted a waiver of Reading’s right to arbitrate under Rule 12200. The Third Circuit affirmed the Eastern District of Pennsylvania, which resolved the transfer dispute before the arbitrability dispute, declined to transfer the action, and required J.P. Morgan to submit to arbitration. Reading’s right to arbitrate is not contractual but arises out of a binding, regulatory rule, adopted by FINRA and approved by the SEC. Condoning an implicit waiver of Reading’s regulatory right to arbitrate would erode investors’ ability to use a cost-effective means of resolving allegations of misconduct and undermine FINRA’s ability to oversee and remedy such misconduct. View "Reading Health System v. Bear Stearns & Co., Inc." on Justia Law

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After paying a total of $15,493.00 on his $5,000 loan, MacDonald filed a putative class action concerning the loan agreement. He cited RICO and New Jersey state usury and consumer laws, arguing that the agreement is usurious and unconscionable for containing a provision requiring that all disputes be resolved through arbitration conducted by a representative of the Cheyenne River Sioux Tribe (CRST) and a clause that delegates questions about the arbitration provision’s enforceability to the arbitrator. No CRST arbitral forum exists. The agreement also purported to waive all of the borrower’s state and federal statutory rights. The district court denied a motion to compel arbitration. The Third Circuit affirmed, concluding that the agreement directs arbitration to an illusory forum without a provision for an alternative forum, and the forum selection clause is not severable, so that the entire agreement to arbitrate, including the delegation clause, is unenforceable. View "MacDonald v. Cashcall Inc." on Justia Law

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The “Sunoco Rewards Program,” which Sunoco advertised, offered customers who buy gas at Sunoco locations using a Citibank-issued credit card a five-cent per gallon discount either at the pump or on their monthly billing statements. The “Terms and Conditions of Offer” sheet, indicating that Citibank is the issuer of the Card, stated that by applying for the card, the applicant authorized Citibank to “share with Sunoco® and its affiliates experiential and transactional information regarding your activity with us.” Sunoco was not a corporate affiliate of and had no ownership interest in Citibank and vice versa. White obtained a Sunoco Rewards Card from Citibank in 2013. He made fuel purchases with the card at various Sunoco-branded gas station locations. White filed a purported class action against Sunoco, not Citibank, alleging that “[c]ontrary to its clear and express representations, Sunoco does not apply a 5¢/gallon discount on all fuel purchases made by cardholders at every Sunoco location. Sunoco omits this material information to induce customers to sign-up for the Sunoco. The Third Circuit affirmed the denial of Sunoco’s motion to compel arbitration. Sunoco, a non-signatory to the credit card agreement and not mentioned in the agreement, cannot compel White to arbitrate. View "White v. Sunoco Inc" on Justia Law

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The Fund, a multi-employer benefit plan established under Labor Management Relations Act, 29 U.S.C. 186(c)(5). The Act broadly prohibits employers from providing payments of money or other items of value to employee representatives, with an exception for employee benefit trust funds that comply with statutory requirements, including mandatory administration by a board of trustees composed of an equal number of employee and employer representatives. The Fund is overseen by five union-designated trustees and five employer-designated trustees. The Act requires such funds to install a mechanism allowing a federal district court to appoint a neutral party to resolve any impasse; the Fund’s Agreement specifies that “[i]n the event of a deadlock,” the Trustees “may agree upon an impartial umpire to break such deadlock.” If they cannot agree with a reasonable time, they may petition the District Court for the Western District of Pennsylvania to appoint an impartial umpire. The Trustees deadlocked on a motion seeking to approve payment of compensation to eligible Trustees for attendance at Fund meetings and another seeking to clarify and confirm the eligibility requirements for Employer Trustees. In each case, one-half of the board petitioned the court to appoint an arbitrator to settle the dispute, and the opposing half sought to prevent the requested appointment. The court declined to send either conflict to arbitration. The Third Circuit remanded, finding that both disputes were within the purview of the parties’ agreement to arbitrate. View "Employer Trustees of Western Pennsylvania Teamsters v. Union Trustees of Western Pennsylvania Teamsters" on Justia Law

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Moon performed at the Breathless Men’s Club in Rahway. She rented performance space in the Club and signed an Independent Dancer Rental Agreement, stating: Dancer understands and agrees that he/she is an independent contractor and not an employee of club. Dancer is renting the performance space for an agreed upon fee previously agreed to by Dancer and Club. … In a dispute between Dancer and Club under this Agreement, either may request to resolve the dispute by binding arbitration. THIS MEANS THAT NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL – DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS. Moon sued under the Fair Labor Standards Act, 29 U.S.C. 201; the New Jersey Wage Payment Law; and the state Wage and Hour Law. The district court denied a motion to dismiss and ordered limited discovery on the arbitration issue. After discovery, the court granted the Club summary judgment. The Third Circuit reversed. Moon’s claims do not arise out of the contract itself; the arbitration clause does not cover Moon’s statutory wage-and-hour claims. View "Moon v. Breathless Inc" on Justia Law

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Fair Labor Standards Act claims, not dependent on interpretation of collective bargaining agreement, need not be arbitrated, where arbitration clause does not include a clear waiver. Certified nursing assistants, sued their employer, Silver Care, for violations of the Fair Labor Standards Act (FLSA) and related New Jersey laws, claiming that Silver underpaid them for overtime by failing to include certain hourly wage differentials in the calculation of plaintiffs’ regular rate of pay, and by deducting plaintiffs’ half-hour meal breaks from their total hours worked, although they often worked through those breaks. Silver unsuccessfully moved to dismiss or to stay the proceedings, citing the arbitration clause in the governing collective bargaining agreement (CBA). The Third Circuit affirmed. A court may compel arbitration of a plaintiff’s federal statutory claim when the arbitration provision clearly and unmistakably waives the employee’s ability to vindicate that right in court and the federal statute does not exclude arbitration as an appropriate forum. If no clear or unmistakable waiver exists, arbitration may be compelled if the plaintiff’s FLSA claim “depends on the disputed interpretation of a CBA provision,” which must “first go to arbitration.” Silver did not dispute that the arbitration provision lacks a clear and unmistakable waiver. Neither of the FLSA claims depend on disputed interpretations of CBA provisions. View "Jones v. SCO Silver Care Operations LLC" on Justia Law

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In New Jersey, GTL is the sole provider of telecommunications services that enable inmates to call approved persons outside the prisons. Users can open an account through GTL’s website or through an automated telephone service with an interactive voice-response system. Website users see GTL’s terms of use and must click “Accept” to complete the process. Telephone users receive an audio notice: Please note that your account, and any transactions you complete . . . are governed by the terms of use and the privacy statement posted at www.offenderconnect.com.” Telephone users are not required to indicate their assent to those terms, which contain an arbitration agreement and a class-action waiver. Users have 30 days to opt out of those provisions. The terms state that using the telephone service or clicking “Accept” constitutes acceptance of the terms; users have 30 days to cancel their accounts if they do not agree to the terms. Plaintiffs filed a putative class action alleging that GTL’s charges were unconscionable and violated the state Consumer Fraud Act, the Federal Communications Act, and the Takings Clause. GTL argued that the FCC had primary jurisdiction. Plaintiffs withdrew their FCA claims. GTL moved to compel arbitration. The district court denied GTL’s motion with respect to plaintiffs who opened accounts by telephone, finding “neither the knowledge nor intent necessary to provide ‘unqualified acceptance.’” The Third Circuit affirmed. The telephone plaintiffs did not agree to arbitration. View "James v. Global TelLink Corp." on Justia Law

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In August 2012, Aliments, a Canadian snack purveyor, contacted its American broker, Sterling, to purchase thousands of pounds of raw pistachios. Sterling contacted Pacific, another broker, which called Nichols, a California pistachio grower, who agreed to the proposed quantity and price. In September, Sterling contacted Pacific with another order from Aliments. Pacific contracted with Nichols again. Sterling sent sales confirmations to Aliments and Pacific. Pacific did not forward the Sterling sales confirmations to Nichols but issued its own confirmations to Nichols and Sterling. Neither Aliments nor Nichols was aware that two confirmations existed, with the same terms, including a 30-day credit term. However, while Sterling’s confirmations contained arbitration clauses, not all of the confirmations generated by Pacific contained arbitration clauses. Aliments believed that the Sterling confirmations, though unsigned by either party, represented binding contracts to purchase pistachios from Nichols, with payment due 30 days from delivery, “as usual.” Nichols thought that the 30-day term was but a placeholder. The parties were unable to agree to payment terms. Despite being notified of an arbitration, Nichols did not attend. Aliments was awarded $222,100 in damages. Nichols refused to pay. The district court denied Aliments’ petition to enforce the award and granted Nichols’s cross-petition to vacate because no genuine issue of material fact existed as to whether the parties failed to enter into “an express unequivocal agreement” to arbitrate. The Third Circuit vacated, finding multiple issues of fact. View "Aliments Krispy Kernels Inc v. Nichols Farms" on Justia Law

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In 2008, the workers’ compensation insurance policy for South Jersey (SJ), a trash-removal business, neared expiration, SJ, through its insurance agent, entered into a three-year Reinsurance Participation Agreement (RPA) with Applied Underwriters. The RPA stated that any disputes would be arbitrated in Tortola or in an agreed location and indicated that it would be governed by Nebraska law. The RPA and its attachments total 10 pages. SJ claims that it believed the RPA was a workers’ compensation insurance policy; that Applied fraudulently presented it as such; that the RPA is actually a retrospective rating insurance policy under which premiums would be based on claims paid during the previous period; and that it was promised possible huge rebates. SJ acknowledged that Applied is not an insurer and cannot issue workers’ compensation insurance. Applied represented that SJ purchased a primary workers’ compensation policy from Continental, which entered into a pooling agreement with California; all are Berskshire Hathaway companies. The pooling agreement was a reinsurance treaty. According to Applied, the RPA was not insurance, but an investment instrument. For 34 months, SJ paid monthly premiums of $40,000-$50,000, expecting a rebate. Claims paid on its behalf were $355,000 over three years. After the RPA expired, Applied declared that SJ owed $300,632.94. SJ did not pay. Applied filed a demand for arbitration. SJ sought declaratory relief as to the arbitration provision and rescission of the RPA. The district court denied the motion to compel arbitration. The Third Circuit reversed. SJ’s challenges to the arbitration agreement apply to the contract as a whole, rather than to the arbitration agreement alone; the parties’ dispute is arbitrable. View "South Jersey Sanitation Co., Inc v. Applied Underwriters Captive Risk Assurance Co., Inc." on Justia Law

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Plaintiffs represent a putative class of New Jersey real estate purchasers and refinancers who were overcharged $70 to $350 in fees. Plaintiffs allege that settlement agents (Defendants) intentionally charged Plaintiffs more than the county clerk charged for recording deeds and mortgages and kept the difference. The class claims total over $50 million, exclusive of treble damages and interest. Defendants sought dismissal and raised affirmative defenses, but did not seek to enforce arbitration clauses present in their contracts with Plaintiffs. The case was litigated for 30 months with the focus primarily on class certification. Both sides conducted broad discovery and contested substantive motions. Plaintiffs have served 130 non-party subpoenas and spent over $50,000 on experts. In 2011, the Supreme Court held that the Federal Arbitration Act (FAA) preempted state laws that had previously prohibited a party from compelling bipolar (individual) arbitration in certain situations even when it was specifically agreed to by contract. Defendants demanded enforcement of the arbitration agreements in light of this change in the law, then moved to compel bipolar arbitration. The Third Circuit affirmed in favor of Defendants. Futility can excuse the delayed invocation of the right to compel arbitration; any attempt to compel bipolar before the Supreme Court’s decision would have been futile. View "Chassen v. Fid. Nat'l Fin. Inc." on Justia Law